TUTORIAL ON COPYRIGHT LAW

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1 TUTORIAL ON COPYRIGHT LAWBased on materials prepared by Profs. Pamela Samuelson & David Post for the Computers Freedom & Privacy Conference, April 4, 2000Edited and amended by Mike Godwin, CDT, for Stockholm ANW, June 2001

2 WHAT IS “INTELLECTUAL PROPERTY” (A.K.A. “IP”)?Rights in commercially valuable information permitting owner to control market for products embodying the informationCopyrights for artistic & literary works (including software)Patents for technological inventions (also including software)

3 WHAT IS “IP”? (2)Trade secrets for commercially valuable secrets (e.g., source code, Coke formula)Trademarks (e.g., Coca Cola, Coke) to protect consumers against confusionCopyright and trademark law are the areas most likely to have international, civil-liberties significance on the Internet, and, of the two, copyright law is more likely to be significant than trademark law.

4 ELEMENTS OF ALL IP LAW Subject matter to be protectedQualifications for protectionWho can claimProcedure for claimingSubstantive criteriaSet of exclusive rights (rights to exclude other people's uses of the IP)Limitations on exclusive rightsInfringement standardSet of remedies

5 ELEMENTS OF COPYRIGHT Subject matter: works of authorshipE.g., literary works, musical works, pictorial works. NB: software is a “literary work”Qualifications:Who: the author (but in US, work for hire rule)Procedure: rights attach automatically (but US authors must register to sue; remedies depend on regis.)Criteria: “originality” (some creativity); [in US] works must also be “fixed” in some tangible medium

6 COPYRIGHT ELEMENTS (2)Set of exclusive rights (right to exclude others):to reproduce work in copies,to prepare derivative works, including translationsto distribute copies to the public,to publicly perform or display the work, or communicate it to the public (broadcast)“moral rights” of integrity & attributionsome rights to control acts of those who facilitate or contribute to others’ infringement (e.g., ISPs)

9 “UNCOPYRIGHTABLE” STUFFLedger sheets and blank formsRules and recipesWhite pages listings of telephone directoriesFacts and theories (although particular expressions of facts or theories are copyrightable)Ideas and principlesMethods of operation/processes

10 COMPILATIONS AND DERIVATIVE WORKSCreativity in selection and arrangement of data or other elements = protectable compilation. (There has to be some small degree of creativity at the very least -- see, e.g., Feist v. Rural Telephone.)Original expression added to preexisting work = protectable d/w (e.g., novel based on movie)Compilation or derivative work copyright doesn’t extend to preexisting material (e.g., data or public domain play)Use of infringing materials may invalidate copyright in compilation or derivative work

12 INTERNATIONAL TREATIES (2)TRIPS (Trade-Related Aspects of Intellectual Property Rights) AgreementSets minimum standards for seven classes of IPR, including copyright, that binds WTO membersMust have substantively adequate laws, as well as adequate remedies and procedures and must enforce effectivelyDispute resolution process now available

13 DIGITAL COMPLICATIONSDigitized photographs of public domain works (e.g., Microsoft claims ownership in some)Very easy to reselect and rearrange the data in databases; uncreative databases may be very valuable; EU has created a new form of IP right in contents of databases to deal with this. (New right is analogous to copyright, but not the same as copyright. Database protection can have civil-liberties, freedom-of-inquiry implications. May affect journalism, scholarship.)

15 DIGITAL COMPLICATIONS (3)Can’t access or use digital information without making copies. (U.S. courts began this analysis by stating that even ephemeral RAM or transmission copies are "copies" regulable under copyright law.)New ways to appropriate information (e.g., Motorola violated the law by “stealing” data from NBA games for sports pager device)

16 DIGITAL COMPLICTIONS (4)People see that much Internet information is free and expect it all to be (or nearly so).Many people think that private copying doesn’t infringe copyright; much of industry disagrees. Some in industry would like to meter access to copyrighted works, so that all private use is for-pay.

18 WIPO COPYRIGHT TREATY (1996)Reproduction right applies to digital works (but no agreement on temporary copies)Exclusive right to communicate digital works to the public by interactive serviceFair use and other exceptions can apply as appropriate; new exceptions OKMerely providing facilities for communication not basis for liability

19 WIPO TREATY (2)Tampering with copyright management information to enable or conceal infringement should be illegalNeed for “adequate protection” and “effective remedies” for circumvention of technical protection systemsTreaty not yet in effect, but US has ratified and implemented through DMCA; Canada has signed; EU has adopted a directive similar to DMCA (see Hugenholtz analysis/criticism).

26 MPAA v. REIMERDES CSS is effective access control for DVDsDeCSS circumvents it & has no other commercially significant purposeInjunction vs. posting of DeCSS on websites or otherwise making it available

28 DIGRESSION: ELEMENTS OF TRADE-SECRET LAWInformation that can be used in business that is sufficiently valuable & secret as to afford an economic advantage to the holderOutgrowth of unfair competition lawNo “exclusive rights” as such, but protected vs. use of improper means & breach of confidenceIndependent development & reverse engineering are legitimate ways to acquire a trade secretRelief generally limited to period in which independent development would have occurred

29 IMPLICATIONS OF DVD-CCAAnti-reverse engineering clauses are common in software licenses; enforceability much debatedJudge treat information obtained through alleged reverse engineering as trade secretJohansen didn’t reverse engineer, nor did many posters, yet held as trade secret misappropriatorsJudge enjoined information that had been public for several months may be error

30 CONCLUSIONDigital technology has posed many difficult questions and problems for copyright lawMuch remains in controversy; how current cases are resolved matters a lotPossible to build balance into law, but US “selling” broad anti-circumvention rules.Gap in perception about law between copyright industry and the publicEasier to see the risks than the opportunities